Before the wedding comes the prenup

Congratulations, you’re getting married! Along with the fun parts of celebrating your love and planning your wedding, your engagement may also have you thinking about one thing that causes you dread: talking about a prenup.

What is a prenup?

A prenuptial agreement, often called a prenup, is a legally binding contract between two people before they marry. This contract sets out the property and financial rights of each party both during and after the marriage (i.e. in case of a divorce), including issues like how to divide property acquired during the marriage, property brought into the marriage by each person, and spousal support.

Think of a prenup as a way to customize the law to your needs. Every state has laws that guide what will happen in the event of a divorce, but if you have a prenup, then the court will follow the rules you set out for yourself instead. Prenups enable you to know–and specify–what you’re committing to, even if you move to a different state.

Reasons to consider a prenup

Prenups can preserve people’s financial independence during marriage

People with high personal wealth, high income, or ownership interests in businesses prior to marriage may want to make sure they are protected in the event of a divorce, or that a family business stays in the family. People entering the marriage with high debt may want to assure their partner that they would remain responsible for their own debt.

Prenups can correct financial imbalances between spouses

A prenup that sets out what will happen in a divorce can ensure that the wealthier spouse does not take on an unfair financial burden in the event of a divorce, and that the less wealthy spouse is fairly taken care of. If one spouse plans to quit his or her job to take care of the couple’s children, a prenup can prevent the spouse from having financial problems caused by leaving the workforce.

While no one likes thinking about divorce, a prenup is like an insurance policy

You may not end up using it, but it is good to know you have it in the event of an emergency. By discussing what will happen in the event of a divorce now, you can have a level-headed conversation and ensure that everyone is treated fairly.

Having a prenup is practical and smart

Financial issues are one of the major causes of friction in a marriage. Although discussing money can be awkward, it is better to learn to talk about difficult subjects now. Talking about a prenup will give you a comprehensive view of each other’s finances, and will help make sure you’re on the same page about financial decisions, goals, and habits. Having a prenup doesn’t hurt anything– if all goes according to plan, you’ll never use it! Discussing it is the hardest part. Make open communication a part of your marriage by acknowledging your discomfort with the conversation, and diving in.

Tips for discussing a prenup with your partner

Start the conversation early

Don’t wait until the last minute before your wedding to bring up a prenup. Suggest to your partner that you sit down and check in about both of your finances. Discuss things like assets, income, debts, and student loans. Talk about financial goals and family goals, such as buying property, or having children. Have a conversation about how you want to handle your finances during your marriage, and about how you think it would be fair to handle your money and property during a divorce.

Remember, you don’t have to have the conversation all at once

If you get the conversation started early, you’ll have plenty of time to reflect and check in about your prenup. Do your best to listen to your partner’s feelings and ideas, and be prepared to try again if the conversation stalls.

Get legal advice

It’s always a good idea to involve lawyers in this process. A competent lawyer will both help to ensure the prenup is enforceable and help you understand what terms you should include and what your state’s default laws are. In general, it’s a good idea for each of you to have your own lawyer that will represent your interests and make sure you understand how the prenup will affect you. If you do not work with a lawyer to draft it, the court may be less likely to enforce it when one party argues he/she didn’t understand the agreement.

Get your paperwork together

Financial disclosure is important to ensuring a prenup’s enforceability. You need to show your partner your assets, debts, and income so that they’re fully informed about what rights they’re giving up.

Draft the prenup together

Present this to your spouse as a team effort that will benefit both of you– this isn’t about just protecting yourself, it’s about making sure you are both treated fairly. Prepare the provisions of the prenup together, rather than just presenting your own demands. If you need some help with the conversation, consider consulting a mediator, a marital counselor, or a financial advisor to guide you.

Be honest about your reasons and transparent about your concerns

Talking about money can be emotional, and talking about it in the context of divorce can be even more so. If you trust your partner to listen to you and are open about your thoughts and feelings, you are well on your way to having a productive conversation.

Remember that prenups aren’t always enforced

In general, prenuptial agreements can be “set aside” by the Court for a number of reasons. Some of these are within your control, like ensuring each party has his/her own lawyer and a translation of the agreement if he/she isn’t fluent in English. The Court will not enforce parts of the prenup which are forbidden by law, like, for example, agreeing to no child support in California. It is also possible that the Court would choose not to enforce a prenup if it is grossly unfair or unconscionable–something to keep in mind when you’re writing it.

Amanda Gordon is Rocket Lawyer On Call® attorney and a family law attorney in the San Francisco Bay Area of California. Amanda focuses on all aspects of family law including divorce, child custody, support, and parenting plans. Amanda’s mission for her practice is to put family first. Find out more at gordonfamilylaw.com.